The Volokh Conspiracy

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Is Distinctive Law Downstream from Distinctive Judges and Counsel?


Noel Cox, The Influence of the Common Law on the Decline of the Ecclesiastical Courts of the Church of England, 3 Rutgers J. L. & Religion 1 (2001-2002): "If there is one lesson to be learnt from the experience of the Church courts since the Reformation, it is that their strength depended not just upon retaining the confidence of the bishops, clergy and laity, but that without a strong cadre of professional judges and counsel 'learned in the ecclesiastical law', they fall under the increasing influence of the common law. Without these personnel, and an understanding that secular judicial procedures are not necessarily appropriate to decide religious questions, the ecclesiastical courts were condemned to satisfy few when contentious issues are decided."

That point is being made about the dominance of the common law vis-a-vis the canon, but something similar might be said about the dominance of the common law vis-a-vis equity. That is explored in Equity: Notes on the American Reception.